MIGRATION - Appeal from a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - whether Mandians/Sabians in Iran subject to persecution - Ministerial discretion to substitute a more favourable decision.

COSTS - No costs where case contains a significant public interest element.

WAAW v MINISTER FOR IMMIGRATION

WAAW v MINISTER FOR IMMIGRATION
[2002] FMCA 64

MIGRATION - Appeal from a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa - operation of privative clause in the Migration Act 1958 (Cth) - whether any reviewable error disclosed by the decision of the RRT - whether Mandians/Sabians in Iran subject to persecution - Ministerial discretion to substitute a more favourable decision.

COSTS - No costs where case contains a significant public interest element.

(1) The Court recommends that the Minister give consideration to the question whether he should substitute a more favourable decision for the decision of the Refugee Review Tribunal.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH

WZ38 of 2002

WAAW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application by the applicant in this matter who cannot be identified pursuant to section 91X of the Migration Act 1958 (Cth) ("the Migration Act").

2. The background facts are accurately set out in paragraphs 2 to 13 of the respondent's helpful outline of submissions. The applicant is a citizen of Iran who arrived in Australia without a visa on 16 December 2000. On 8 January 2001 the applicant lodged an application for a protection visa. The application was accompanied by a statement by the applicant made on 6 January 2001. On 15 March 2001 a delegate of the respondent refused the application for a protection visa and published a decision record.

3. On 20 March 2001 the applicant applied to the Refugee Review Tribunal ("the RRT") for a review of the decision of the delegate. The RRT conducted a hearing on 9 May 2001 at which the applicant gave oral evidence.

4. Subsequent to the hearing by letter dated 27 August 2001, the RRT sent information to the applicant asking him to comment on it. The letter said it may form part of the reason for the RRT affirming the decision under review. The applicant's solicitors responded to this letter by letter dated 3 September 2001.

5. On 24 September 2001 the RRT affirmed the decision not to grant a protection visa to the applicant and published its reasons for decision.

6. An application to the Federal Court was made by the applicant on 12 October 2001.

7. On 6 November 2001 the Federal Court ordered, amongst other things, that by 27 November 2001 the applicant file an amended application giving particulars of any grounds of review or a written statement setting out the reasons why he considered the decision of the Tribunal to be wrong. No document has been filed in compliance with this order. On 21 February 2002 His Honour Carr J ordered that the application be transferred to the Federal Magistrates Court.

8. The review application was filed on 12 October 2001 and purported to be an application for an order of review of a decision of the RRT. The application was not in proper form in view of amendments to the Migration Act made at the beginning of October 2001 to severely restrict the jurisdiction of any Court reviewing migration decisions.

9. Those amendments had several effects. The first was to remove restrictions on judicial review that formerly existed. The second was to confer concurrent jurisdiction on this Court with the Federal Court to review decisions; and the third was to enact a privative clause which on its face absolutely excluded any form of judicial review by any court.

I considered the operation of the privative clause in Lachmi v Minister for Immigration and Multicultural Affairs [2002] FMCA 19. I adhere to the decision I made in that case that notwithstanding the privative clause a privative clause decision may be reviewed on three bases.

10. The first basis for review is that the decision was not a bona fide attempt to exercise the decision maker's power; the second is that the decision displayed a constitutional or statutory jurisdictional error on its face; and the third is that the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the RRT. There is no suggestion that either the first or the third grounds of review are relevant in this case. Neither is there any suggestion in this case of any constitutional error on the face of the decision of the RRT.

11. I have proceeded on the basis that the application is an application for prerogative relief alleging statutory jurisdictional error on the face of the decision of the RRT. As in Lachmi, I have concluded that it is open to the applicant to obtain prerogative relief if the applicant can establish some breach of an essential requirement in the Migration Act. Following the decision of NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, it seems unlikely that an application could be successfully founded on any alleged breach of common law rules of procedural fairness.

12. I have heard from the applicant in person today and I have also heard from Mr Ritter on behalf of the Minister and these reasons for my decision should be read in conjunction with the transcript of today's proceedings. I have found this case to be a difficult one. The main basis on which the applicant seeks a protection visa is that he says that he is a member of a tiny religious minority known as Mandians or Sabians, who are persecuted in Iran. The applicant has made that claim consistently and the RRT accepted that he is a member of the Mandian or Sabian religion.

13. It seems from information relied upon by the RRT that the Mandian religion is an ancient one whose adherents revere John the Baptist. Mandians do not accept the divinity of Jesus Christ. They may be descended from the Jewish Essenes sect to which John the Baptist apparently belonged. They form a tiny minority in Iraq and Iran of possibly as few as 20,000 people.

14. I am satisfied that the RRT correctly adopted the definition of refugee for the purposes of the Convention and the Migration Act. The RRT also took into account information provided by the applicant and his advisers about the treatment of Mandians in Iran as well as country information. That information clearly points to Mandians being subject to discrimination in Iran. The Christian and Jewish minorities in Iran are officially recognised. Information concerning the status of Mandians/Sabians is somewhat equivocal. It appears that in general terms Mandians/Sabians are regarded as either a branch of Christianity or a branch of Judaism and are therefore granted some measure of official recognition.

15. On the other hand, Mandians clearly do not have official recognition in their own right and this leaves them in something of a twilight zone. The information provided to the RRT and relied upon by the RRT establishes that Mandians face discrimination in particular forms. For example, they are required to pay higher taxes than Muslims. There was also material before the RRT which the RRT accepted that at least one Mandian place of worship had been confiscated by the authorities.

16. It also seems that Mandians may be subject to petty discrimination in terms of stone throwing by individuals. Mandians are regarded as unclean and cannot touch food in public places. The RRT also took into account that in some respects Mandians/Sabians do not receive the same legal of protection from the authorities that other Iranians enjoy. For example, they may be subject to discriminatory treatment in the courts. The evidence of a Mandian may not be accepted if it is not supported by an Islamic witness. These are all examples of discrimination that would be regarded as abhorrent in our society.

17. Critically, however, the RRT did not accept that the discrimination that would be suffered by the applicant as a Mandian amounted to persecution. At page 258 of the Court book and page 30 of the reasons for decision of the Tribunal, the Tribunal said this:

The Tribunal finds that as a religious minority in Iran, the Sabian Mandian community faces some discrimination and that as individuals Sabian Mandians may face some discrimination. The Tribunal is supported in this finding by the independent evidence. The Tribunal accepts that the applicant may have been verbally abused by the Moslem majority because he is Sabian Mandian and he may have been unable to touch foodstuffs and to have stones thrown during religious rituals. The Tribunal finds that these things may have been unpleasant. However, it does not consider that such treatment amounts to serious punishment or penalty or significant detriment or disadvantage...and, therefore, does not amount to persecution for the purposes of the Convention.

18. There is support for the approach taken by the RRT in the decision of the Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334. That case concerned an applicant who the RRT accepted would be subjected to racial discrimination. The Full Federal Court found that the approach taken by the RRT was correct and that a degree of discrimination which might be described as low level need not amount to persecution.

19. Two other decisions of the Federal Court were referred to in argument today. The first was case W195 of 2001 A v Minister for Immigration and Multicultural Affairs [2002] FCA 396. That was a decision of His Honour Lee J on 9 April and in that case His Honour found that the RRT had breached section 65 of the Migration Act in wrongfully excluding material from consideration. Before me today the applicant asserted that certain material had not been considered by the RRT and the applicant referred in particular to the material in the court book at page 225 and also at pages 207 and 208. I am satisfied, however, that that material was put before the RRT and was properly taken into account by the RRT.

20. The applicant also referred to a law of Iran which he identified as law 107 -112 which the applicant said exposed Mandians/Sabians to the arbitrary application of the death penalty. I find that the assertion regarding the operation of that law was not put to the RRT and so obviously could not have been taken into account by it.

21. The other case that was referred to this morning was case number N1202 of 2001 A v Minister Immigration and Multicultural Affairs [2002] FCA 403. That was a decision of the Full Federal Court on 8 April 2002 and concerned a Kurdish national of Iran who sought a protection visa, among other reasons, because of his adherence to the minority Al Haqq religion. In that case the Full Federal Court found that the RRT had committed errors of law in its findings as to the risk of persecution suffered by the applicant but it is important that the major error committed by the RRT was a failure to take into account the consequences of the conversion of the applicant's wife from Islam to the Al Haqq religion. That raised an important issue of apostasy which is not present in this case.

22. It is important in cases such as this to bear in mind that judicial review is not merits review and the presiding judicial officer should take care not to step into the shoes of the decision-maker under review. The material before the RRT clearly established persistent and abhorrent discrimination against Mandians/Sabians. It may be that a different decision-maker would have concluded that the discrimination to which the applicant would be subjected in Iran amounted to persecution.

23. That, however, is not the issue for determination by me today. The issue for me to decide today is whether the RRT committed a legal error that could support the giving of prerogative relief. Both in relation to the issue of religious persecution and the other grounds advanced by the applicant, I can find no apparent legal error committed by the RRT. In particular, I can find no breach of an essential requirement imposed on the RRT by the Migration Act. In the circumstances, there is no basis available to me to disturb the decision of the RRT in the very limited circumstances left available to the courts by the Migration Act.

24. That said, the situation of Mandians/Sabians in Iran appears on objective analysis to be disturbing. The applicant has today referred to law 107-112 as exposing himself as a Mandian to the threat of the arbitrary application of the death penalty. That is a matter deserving of further inquiry. In addition, the circumstances put before the RRT and put before me today objectively suggest that the applicant as a Mandian/Sabian may well be subject to individual discrimination of an abhorrent kind which the government of Iran is unwilling or unable to protect the applicant from.

25. It is open to the Minister to himself substitute for the decision of the RRT a more favourable decision. It is not for me to purport to direct the Minister as to how he should exercise his discretion. It is, however, open to me to recommend to the Minister that he consider the exercise of his discretion in this matter. In the circumstances, the order that I will make will be to dismiss the application, but to append a recommendation that the Minister consider the exercise of his discretion to substitute a more favourable decision in the circumstances of this case.

26. I have also heard submissions on costs. The Minister sought his costs. The applicant opposed an order. The Court has a very wide discretion as to costs but the discretion must not be exercised capriciously. Ordinarily, costs follow the event and the Minister has done nothing to disentitle himself to an order for costs. However, this case contains a significant element of public interest. The case is possibly unique in raising the issue of the treatment of Sabians/Mandians in Iran. I am sufficiently concerned about the decision of the RRT and the alleged discriminatory application of the death penalty to recommend to the Minister that he consider substituting a more favourable decision. For these reasons I will make no order as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM